0120093163
12-08-2009
Mary A. Boston,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120093163
Agency No. 4H300012508
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated June 24, 2009, finding that it was
in compliance with the terms of the March 27, 2008 settlement agreement
into which the parties entered. See 29 C.F.R. � 1614.402; 29 C.F.R. �
1614.504(b); and 29 C.F.R. � 1614.405.
The settlement agreement provided, in pertinent part, that:
(1) [Complainant] will be given Periodicals Training and Management
and [complainant] will attempt to determine what training was provided
and when.
(2) [The Manager of Business Mail Entry] will notify in writing
Business Mail Entry Employees instructions for applying and consideration
for any detail opportunities that become available in his functional
area.
(3) [The Manager of Business Mail Entry] will communicate in writing
all training to include a detailed description of the training.
By letter to the agency dated April 29, 2009, complainant alleged that
the agency was in breach of the settlement agreement, and requested that
the agency implement its terms. Specifically, complainant alleged that
the agency failed to comply with provisions (2) and (3). As to provision
(2) of the settlement agreement, complainant indicated that a co-worker
was detailed to a Mailing Standards Specialist position without anyone
being provided with instructions on how to apply or to be considered for
this detail. Further, as to provision (3), complainant alleged a junior
employee was provided with training which was not communicated to her.
In its June 24, 2009 FAD, the agency determined that complainant failed to
show that the settlement agreement had been breached. As to provision
(2), the agency indicated that the Manager of Business Mail Entry
provided an affidavit which explained that the "detail" was merely a
one day fill-in situation based on the absence of the regular Mailing
Standards Specialist. As to provision (3), the agency indicated it
was not an opened training session, and the employee was involved in a
previous train-the-trainer program for the identified training. Based
on the statement from the Manager of Business Mail Entry, the agency
determined that it did not breach the settlement agreement.
This appeal followed. Complainant alleged that she was not satisfied with
the agency's investigation of the matter. Further, complainant alleged
that she has been subjected to retaliation for her prior EEO activity.
EEOC Regulation 29 C.F.R. � 1614.504(a) provides that any settlement
agreement knowingly and voluntarily agreed to by the parties, reached at
any stage of the complaint process, shall be binding on both parties.
The Commission has held that a settlement agreement constitutes a
contract between the employee and the agency, to which ordinary rules of
contract construction apply. See Herrington v. Department of Defense,
EEOC Request No. 05960032 (December 9, 1996). The Commission has further
held that it is the intent of the parties as expressed in the contract,
not some unexpressed intention, that controls the contract's construction.
Eggleston v. Department of Veterans Affairs, EEOC Request No. 05900795
(August 23, 1990). In ascertaining the intent of the parties with regard
to the terms of a settlement agreement, the Commission has generally
relied on the plain meaning rule. See Hyon O v. United States Postal
Service, EEOC Request No. 05910787 (December 2, 1991). This rule states
that if the writing appears to be plain and unambiguous on its face,
its meaning must be determined from the four corners of the instrument
without resort to extrinsic evidence of any nature. See Montgomery
Elevator Co. v. Building Eng'g Servs. Co., 730 F.2d 377 (5th Cir. 1984).
In the instant case, we find that complainant failed to establish that
the agency breached the settlement agreement. We note as to provision
(2), the agency provided statements indicating that there has been no
detail opportunities that have become available. As such, there has been
no breach. Further, as to provision (3), the only training opportunity
pointed to by complainant did not appear to be an open training session
but one related to a previous train-the-trainer session. As such,
we find that complainant has not established that the agency's alleged
actions constituted breach.1
CONCLUSION
Accordingly, we AFFIRM the agency's determination regarding complainant's
claim of breach of the settlement agreement.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the
policies, practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960,
Washington, DC 20013. In the absence of a legible postmark, the request
to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0408)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as the
defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1008)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. �� 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time
limits as stated in the paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 8, 2009
__________________
Date
1 We note that on appeal complainant alleged that she has been subjected
to unlawful retaliation. Complainant should raise these claims with the
agency's EEO Office. It is not appropriate for complainant to allege
such claims for the first time appeal.
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0120093163
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120093163